Imatges de pàgina
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the said act imposed, and to distrain for the arrearages of every such collection, tax, and assess, as often as should be expedient; and it was by the 8th section of that act provided, "that if any person or persons being assessed or taxed to any lot or charge for any lands, tenements, or hereditaments within the limits of any commission thereafter to be directed, should not pay the said lot and charge according to the ordinance and assignment of the Commissioners having power of the execution of the said commission, by reason whereof it should happen the said Commissioners having power of the execution of such commission, for lack of payment of such lot and charge, to decree and ordain the same lands, tenements, and hereditaments from the owner or owners thereof, and their heirs, and the heirs of every of them, to any person or persons, for term of years, term of life, in fee simple, or in tail, for payment of the same lot and charge, that then every such decree and ordinance, so by them made and engrossed in parchment, and certified under their seals into the King's Court of Chancery, with the King's royal assent had to the same, should bind all and every person and persons that, at the making of the same decree, had any interest in such lands, tenements, or hereditaments in use, possession, reversion, or remainder, their heirs and feoffees, and every of them, and not to be in anywise reformed, unless it be by authority of parliament thereafter to be summoned and holden within this realm;" and it was, by the 9th section of the same act, further provided, that the same laws, ordinances and decrees to be made and ordained by the said Commissioners, or six of them, by authority of the said commission should bind, as well the lands, tenements, and hereditaments of the King, our sovereign lord, as all and every other person and persons, and their heirs, for such their interest as they should fortune to have, or might have, in any lands, tenements, or hereditaments, or other casual profit, advantage, or commodity, whatsoever they be, whereunto the said laws, ordinances and decrees should in anywise extend, according to the true purport, meaning, and intent of the same laws. By another act of parliament made and passed in the 7 Anne, c. 10, intituled, "An Act for rendering more effectual the laws con

cerning commissions of Sewers," power was given to the Commissioners for non-payment of any lot assessed on copyhold lands, to decree the same from the owners, such decrees to be executed as decrees concerning freehold lands; and it was by the 3rd section of that act provided, that it should and might be lawful for the Commissioners of Sewers, or any six or more of them, by warrant under their hands and seals, to give authority to any person or persons to levy the sums of money by them from time to time to be assessed or taxed, upon the lands, meadows, marshes, or grounds liable, or chargeable with any cesses, taxes, impositions, or charges by authority of their said commission, by distress and sale of the goods of such person or persons that should not pay, or refuse to pay the same; and that the overplus of the money arising upon such sale, after deduction of the reasonable charges of making such distress and sale, should be restored to the owner or owners of the goods so distrained.

Mr. Turner and Mr. Dickinson, for the plaintiffs, contended that the road bonds were not real securities within the meaning of the testator's will, the principal security being the tolls to be collected by the toll-keepersDoe d. Banks v. Booth (1), Mills v. Mills (2); that the Commissioners of Sewers had no interest in the land through which the sewers ran beyond the right to levy certain rates and assessments, and thereout to pay off and satisfy any debts due from the Commissioners in respect of bonds issued by them or otherwise, pursuant to the acts passed relating to the sewers; that the transactions touching the loss and gain affecting the unconverted property were quite separate, and that the one could not be set off against the other; that as no proper conversion was made by the executors of the London Dock and Bank stock and bonds, the investment must be considered as if made in 3l. per cent. consolidated Bank annuities, that being most for the benefit of the plaintiffs, the cestuis que trust, and that there was no ground for allowing the tenant for life the

(1) 2 Bos. & P. 219.

(2) 7 Sim. 501; s. c. 4 Law J. Rep. (N.S.) Chanc. 266.

interest claimed by him of the 41. per cent. -Ex parte Lewis (3), Dimes v. Scott (4). Mr. Elmsley appeared for the surviving

executors.

Mr. Stinton, for a child of the tenant for life born since the filing of the bill.

Mr. Druce, for the defendants the personal representatives of the deceased executor Charles Druce.

Mr. Walpole and Mr. Kent, for the tenant for life, contended that as to the turnpike road bonds, both real and personal security was given for the amount due, and therefore they were to be deemed "real securities" within the meaning of the testator's will, in the same way as a mortgage of freehold lands was a real security, in which a covenant on the part of the mortgagor was always contained to pay the amount secured; and as to the sewers bonds, the interest was payable out of the rates and assessments arising out of the lands in the possession of the owners; that the expressions found in the acts of 23 Hen. 8. c. 5, 3 & 4 Edw. 6. c. 8. and 7 Anne, c. 10. were very strong, and sufficient to authorize the executors in investing the testator's estate therein; that as to the claim of the tenant for life to set off any loss to the estate against the gains that had accrued, the proposition was a reasonable one, but there was no authority to be found directly in point on the subject; that although the cestui que trust was entitled to the option as regarded the nature of the investment to be made, yet in a case like the present, where the question arose between two classes of cestuis que trust and not between trustees and their cestuis que trust, that rule did not apply, and it was in the discretion of the Court to give the tenant for life either 31. or 41. per cent. where the conversion had been omitted to be made at the proper time.

The following cases were cited on behalf of the tenant for life :

Sheppard v. Wilson, 4 Hare, 392.
Gibson v. Bott, 7 Ves. 89.
Walker v. Shore, 19 Ves. 387.
Caldicott v. Caldicott, 1 You. & C. C.C.
312, 321; s. c. 11 Law J. Rep.
(N.S.) Chanc. 158.

(3) 1 Glyn & J. 69.

(4) 4 Russ. 19.

Sutherland v. Cooke, 1 Coll. 498, 503; s. c. 14 Law J. Rep. (N.s.) Chanc. 71. Watts v. Girdlestone, 6 Beav. 188; s. c. 12 Law J. Rep. (N.s.) Chanc. 363. Ames v. Parkinson, 7 Beav. 379.

Mr. Turner, in reply.

The MASTER OF THE ROLLS expressed his opinion that the turnpike road bonds were not such real securities as were contemplated by the testator in his will, and were at best only mixed securities; and added that it could not be reasonably contended that the Sewer bonds were real securities; that as to the question, whether where a loss had been sustained by the trustees on certain transactions, and a gain had been made in others by the trustees, the loss (with which the trustees were chargeable) could be set off against the gain, he was of opinion it could not; and as to the only remaining point discussed, viz., the amount of interest to be received by the tenant for life, some difference of opinion existed on the point, but his opinion had undergone no change on the subject, and it would be satisfactory if the question were determined and set at rest by a higher authority. The tenant for life says, "Let me have interest at 47. per cent. per annum from the time when the estate ought to have been invested on the proper securities," the trustees having had the option to invest the estate on real securities, which might have produced interest at 41. per cent. per annum. On the other hand, it is said, "No, although the trustees might have exercised their option by investing the personal estate in real securities yielding 41. per cent. per annum, they cannot be permitted to do so now, but it must be taken in the way most beneficial to the cestuis que trust." It had been argued that the tenant for life was one of the cestuis que trust, and was entitled to the option; but then the question was, could that be the meaning in cases like the present ? Could the tenant for life, or the trustees, with whom alone the Court had to deal, exercise such option now, which they neglected to exercise at the proper time, and that option, moreover, for the sole benefit of the tenant for life? In his opinion the cestuis que trust had a right to say that that ought to have been done which was most for their benefit

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The Earl of A, by his will, reciting that he was seised of an inalienable estate tail, settled by act of parliament, and also of divers purchased estates, which it was his intention to give to his eldest son, to descend with the title, devised all his said purchased estates to trustees to the use of his eldest son for life, with remainder to the use of such person or persons as might be next entitled upon such son's decease to the family settled estates, in such order and course successively and for such estates and subject to such powers, &c. as were expressed in the act settling the family estates. The testator then bequeathed to his said son all his gold and silver plate, pictures, &c. to be held as heir-looms, and directed his executors to make an inventory of the same. By a codicil the testator declared that in addition to the articles and things by his will made heirlooms, certain other specified chattels should be considered and taken to be heir-looms, and he thereby gave and bequeathed them to his executors as heir-looms in his family, and directed his executors to make an inventory of the same :-Held, that the bequest of the specified chattels was direct, and that they vested absolutely in the first taker.

This case is reported in 17 Law J. Rep. (N.S.) Chanc. 339, and now came before the Court upon the appeal of William Earl of Abergavenny, from the decision of the Vice Chancellor Wigram.

Mr. Bethell, Mr. Lee, and Mr. Goodeve appeared for the appellant.

The Solicitor General and Mr. Simpson, for the sons of Earl William, supported the case of the appellant.

Mr. Walker, Mr. Humphry, and Mr. R. Palmer appeared for the executors of Earl John; and

Mr. Fooks for the plaintiff.

Dec. 4.-The LORD CHANCELLOR.-The only question I have to consider is, whether this case falls within the principle of those decisions which have overruled Lord Hardwicke's judgment in Gower v. Grosvenor (1) and Trafford v. Trafford (2), for I am not at liberty to depart from such principle whatever my opinion may be as to the propriety of the rule adopted. In 1806, in the case of The Countess of Lincoln v. the Duke of Newcastle (3), Lord Eldon thought himself so bound in the House of Lords, after the lapse of sixty years, and I cannot be less bound in this Court; but Lord Eldon did not think himself at that time precluded, nor do I think myself precluded, from expressing regret that Lord Hardwicke's decisions had been departed from, seeing that those decisions were not obnoxious to any principle, and enabled the Court to carry into effect the very obvious intentions of the testator, whereas those which have overruled them treat provisions of this sort (as Lord Hardwicke expresses it in Gower v. Grosvenor) as express gifts to the parties, on purpose to defeat the intentions of testators.

But however much I may lament the evils arising from these later cases, I have only to consider, first, what is the rule and principle established by these later cases; and, secondly, does the present case fall within them?

In Gower v. Grosvenor there was no express gift, but a direction that certain chattels should go as heir-looms, as the testator's real estate was settled, and Lord Hardwicke held that this was to be taken as directory to his executors, and said, that when a man made use of words of this kind, he does not make the limitation himself, but leaves it to the law to do so for him; and in Trafford v. Trafford, in which there was a direct gift, he considered it as controuled by the general intent.

If these were now the ruling authorities, there would be no doubt of their governing the present case; but the last of these decisions was in 1746, and in 1783 the case of Foley v. Burnell (4) was heard before Lord Thurlow, who decided on the point now in

(1) Barnar. 54. (2) 3 Atk. 347. (3) 12 Ves. 218.

(4) 1 Bro. C.C. 274.

question, without any argument, the facts having been misunderstood throughout the discussion; but on a re-hearing before the Lords Commissioners, Lord Loughborough, Judge Ashhurst and Baron Hotham, Lord Hardwicke's judgment was overruled. Certain estates having been so held, that Edward Foley became tenant for life, remainder to his first and other sons in tail, remainder over for life, certain chattels were bequeathed "to be held and enjoyed by the several persons who from time to time should respectively and successively be entitled to the use and possession of his houses respectively as and in the nature of heir-looms, to be annexed and go along with such houses respectively for ever." Edward, the tenant for life, having had a son born, who died shortly afterwards, the question was whether Edward, as representative of such son, or the plaintiffs as devisees in remainder, were entitled to these chattels, and the Lords Commissioners held, that Edward was entitled expressly upon the ground, that the deceased son having been tenant in tail of the houses, was absolutely entitled to the chattels. Each of those learned Judges stated that the infant was entitled according to the terms used, and that the Court could not controul them. This case went to the House of Lords (5), and the decree was then affirmed in 1785, the House having by consulting the Judges adopted a course which proved beyond all doubt their opinion that the rights of the parties were to depend on the legal import of the terms used in the will, and not on the consideration of anything a court of equity might do for the purpose of carrying the apparent general intention into effect. In Vaughan v. Burslem (6), in the year 1790, Lord Thurlow acted upon the same rule. There, there was no direct gift, but a direction that the chattels "should go as heir-looms with the real estate and be held and enjoyed by the person or persons that should for the time being be entitled to the real estate, as far as the rules of law and equity would permit, and directed an inventory of the plate to go with the estate."

Such were the decisions which Lord

(5) 1 Bro. C.C. 286. (6) 3 Ibid. 101.

Eldon, in 1806, reviewed in that case of Lady Lincoln v. the Duke of Newcastle, and he came to the conclusion, that though he preferred the doctrine of Lord Hardwicke, the rule as laid down in the subsequent cases was to be the rule for the future; and concurring in that opinion as I do, it is useless to consider what my judgment in this case might have been had these later decisions not taken place. The question is, indeed, now further concluded by other cases which have followed the same rule, as Carr v. Lord Erroll (7), and Lord Deerhurst v. the Duke of St. Albans (8). In that case, Sir John Leach affirmed the rule laid down, saying, "there is a direct gift, and nothing executory," although he did not very strictly act upon it, when he declared that all persons tenants for life not being in esse at the death of the testator, might have been made so. This decision was however reversed in the House of Lords (9), but upon grounds which do not touch the present case. Lord Dorchester v. Lord Effingham (10), before Sir William Grant, and Mackworth v. Hinxman (11), before Lord Langdale, in 1838, do not apply directly to the present question, but both tend to exemplify the soundness of the principle adopted by Lord Hardwicke.

It remains to be considered whether the case does or does not fall within the principle of those decisions, by which, as I have said, I find myself bound.

By these decisions, a gift of chattels to be used as heir-looms and enjoyed by the person entitled to the real estate, is to be treated as a direct gift; and, therefore, vests in the first person entitled to an estate of inheritance in the land, and is not to be protected further by the interposition of a court of equity. By the will, the gift is "to my son John Lord Viscount Nevill and to his heirs, Earls of Abergavenny." John became Earl Abergavenny. The words are well adapted to create an estate of inheritance, and not the less so from the qualification referred to of their being Earls

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of Abergavenny. It is true the testator has added, that the articles bequeathed are to be held as heir-looms, and that his executors should make an inventory of them, leaving no doubt as to what the testator intended, and affording a sure guide to the Court how to carry his purpose into effect, if it had the power so to do. But circumstances which come within the cases I have observed upon do not prevent the gift from being direct, and therefore do not give the Court power to support the intention.

The second codicil does not vary the case. It only gives certain other chattels as heir-looms, and directs an inventory to be made by the executors; and it gives these articles in addition to the articles and things by his will made heir-looms. The case on the will and codicil, I think, is the same. John Lord Nevill was the testator's heir, who had an estate of inheritance under the words of the will, without regard to the chattels and real estates, which are not referred to; the only heirship referred to being that of the earldom of Abergavenny.

Acting upon the rule established in the cases before referred to, that this bequest is to be treated as direct and not executory, I am bound to declare that John, the eldest son, became absolutely entitled to both sets of these chattels; and I therefore affirm the decree of the Court below.

With regard to the costs, His Lordship said, that the rule of making an unsuccessful party pay costs, did not apply to trustees taking the direction of the Court in the first instance; but when they had got that, their own indemnity was obtained. If their view of their own interest led them to think it expedient to have it heard again, then it could be heard at their own expense. But in this case, as some of the residuary legatees were appellants, the costs might come out of the estate, if none of the parties raised any objection.

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tator's decease, and in case it should happen that A. should die not having received the legacy and he should leave any children, such children should be entitled to the same in equal proportions payable at twenty-one or marriage. A. died during the testator's lifetime, leaving three children who had attained twenty-one, and were living at the testator's decease :-Held, that the legacy lapsed and the children took no interest therein.

A testator, by his will, dated the 5th of October 1839, bequeathed to Benjamin Pettitt and several other persons respectively, legacies of 100l. in the new 3 per cent. Bank annuities, and he directed the same to be paid within six months after his decease; and in case it should happen that any or either of the legatees should die, not having received their respective legacies and leaving any child or children, then he directed such child or children should have and be entitled to their parent's share in equal proportions, to be payable to them at twenty-one or marriage.

Under a reference directed to the Master at the hearing of the cause, he found that Benjamin Pettitt, the legatee, died in the lifetime of the testator, but after the date of his will, viz. on the 14th of November 1843, and that such legacy thereby lapsed, and that the legatee left three children only him surviving, who had long since attained the age of twenty-one years, and were all then living, as well as living at the time of the testator's death.

An exception was taken to the Master's report, on the ground that the Master ought to have found that the three children of B. Pettitt were entitled to the legacy in equal proportions.

Mr. Koe, in support of the exception, cited

Cort v. Winder, 1 Coll. 320.
Gaskell v. Holmes, 3 Hare, 438.

Mr. Turner and Mr. Foster, contended, that the authorities cited were not applicable to the present case; that in the case of Tidwell v. Ariel (1), it was held, that a legacy directed to be paid to the legatee at the end of one year after the testator's death,

(1) 3 Mad. 403.

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